Chapter 20
Kidnapping, Restraint, and Human Smuggling
20.11 Instruction—Aggravated Kidnapping—Safe Release Punishment Issue
You have found the defendant, [name], guilty of aggravated kidnapping. It is now your duty to assess punishment. Before you assess punishment, however, you must address a preliminary question. The range of punishments from which you must choose the defendant’s punishment depends on your answer to that question.
You must determine whether the defendant has proved, by a preponderance of the evidence, that he voluntarily released [name], the victim, in a safe place.
Relevant Statutes
If the defendant proves that he voluntarily released the victim in a safe place, this offense is punishable by—
- any term of imprisonment for no less than two years and no more than twenty years, or
- any term of imprisonment for no less than two years and no more than twenty years and a fine of no more than $10,000.
If the defendant does not prove that he voluntarily released the victim in a safe place, this offense is punishable by—
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life, or
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life and a fine of no more than $10,000.
You must all agree on whether the defendant has proved that he voluntarily released [name] in a safe place.
Burden of Proof
The burden is on the defendant to prove, by a preponderance of the evidence, that he voluntarily released the victim in a safe place.
Definitions
Preponderance of the Evidence
The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
[The following may be included but should not be given if the defendant objects.]
Voluntarily Released
The defendant voluntarily released the victim only if the defendant performed some overt and affirmative act that informed the victim he was fully released from captivity. Voluntary release has not occurred if authorities rescued the victim or if the victim escaped.
Application of Law to Facts
You must determine whether the defendant has proved, by a preponderance of the evidence, that he voluntarily released [name], the victim, in a safe place.
You must all agree on whether the defendant has proved this before you may assess punishment.
Your resolution of this issue will determine which of the two verdict forms you will use. If you all agree the defendant has proved that he voluntarily released the victim in a safe place, use the first verdict form, titled “Verdict—Defendant Has Proved Safe Release of Victim.” If you all agree the defendant has not proved that he voluntarily released the victim in a safe place, use the second verdict form, titled “Verdict—Defendant Has Not Proved Safe Release of Victim.”
If you all agree the defendant has proved, by a preponderance of the evidence, that he voluntarily released the victim in a safe place, you are to determine and state in your verdict—
- any term of imprisonment for no less than two years and no more than twenty years, or
- any term of imprisonment for no less than two years and no more than twenty years and a fine of no more than $10,000.
If you all agree the defendant has not proved, by a preponderance of the evidence, that he voluntarily released the victim in a safe place, you are to determine and state in your verdict—
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life, or
- any term of imprisonment for no less than five years and no more than ninety-nine years or for life and a fine of no more than $10,000.
VERDICT—DEFENDANT HAS PROVED SAFE RELEASE OF VICTIM
We, the jury, having found the defendant, [name], guilty of the offense of aggravated kidnapping, all agree that the defendant has proved that he voluntarily released [name], the victim, in a safe place. We assess the defendant’s punishment at: (select one)
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VERDICT—DEFENDANT HAS NOT PROVED SAFE RELEASE OF VICTIM
We, the jury, having found the defendant, [name], guilty of the offense of aggravated kidnapping, all agree that the defendant has not proved that he voluntarily released [name], the victim, in a safe place. We assess the defendant’s punishment at: (select one)
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Comment
Aggravated kidnapping is prohibited by and defined in Tex. Penal Code § 20.04. The role of voluntary release in a safe place in criminal liability is addressed in Tex. Penal Code § 20.04(d).
Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.
Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word affirmative from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.